Decision

Acceptance Decision

Updated 29 January 2021

Case Number: TUR1/1192/2020

1 September 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

Unite the Union

and

Parc Adfer Operations Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 5 August 2020 that it should be recognised for collective bargaining by Parc Adfer Operations Limited Ltd (the Employer) for a bargaining unit comprising “All workers excluding ‘Senior Managers’ at Parc Adfer Operations Limited, Deeside Site, Deeside Industrial Park, Weighbridge Road, Sealand, Flintshire, CH5 2LL”. The application was received by the CAC on 5 August 2020. The CAC gave both parties notice of receipt of the application on 6 August 2020. The Employer submitted a response to the CAC dated 12 August 2020 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Mr. Stuart Robertson, Panel Chair, and, as Members, Mrs Susan Jordan and Mr. Gerry Veart. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 19 August 2020. The acceptance period was extended to 8 September 2020 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving at a decision.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore should be accepted.

3. The Union’s application

5) The Union stated that it had sent its formal request for recognition to the Employer on 18 May 2020. A copy of that letter was attached to the application. The Union stated that it received a response from the Employer on the 29 May 2020, a copy of which was also attached to the application. The Employer in their response stated that they were willing to meet and discuss further. The Union stated that further to the exchange of correspondence both parties exchanged emails and arranged a ‘zoom meeting’ on the 12 June 2020 which was followed up by a further exchange of email correspondence. The Union stated that unfortunately the engagement between parties reached an impasse.

6) The Union stated that it had not made a previous application under the Schedule for workers in the proposed bargaining unit or a similar unit. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that there were 30 workers employed by the Employer, of whom 23 were in the proposed bargaining unit. Out of the 23 workers in the proposed bargaining unit the Union stated that 20 were members of the Union. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that their members paid by direct debit and they were able to furnish appropriate membership details, if required, at the membership stage via the CAC Case Manager.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it believed it appropriate for the effective management of the business operation and easily identifiable for both parties.

9) The Union stated that the bargaining unit had not been agreed with the Employer. The Union confirmed that it held a current certificate of independence. The Union stated that it had copied the application made to the CAC, and supporting documents, to the Employer on 5 August 2020.

4. The Employer’s response to the Union’s application

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 18 May 2020. The Employer stated that it responded on 29th May 2020 indicating a willingness to meet for further discussions and a copy of their response was attached to the application to the CAC.

11) The Employer confirmed that they received a copy of the application from the Union on 5 August 2020.

12) The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated that their objection to the proposed unit was due to the fact that negotiations with the Union had not included defining the bargaining unit. The Employer stated that it was unclear how the Union was defining ‘Senior Managers’ as that was not a terminology that had been used in discussions with the Union. The Employer stated that at present there was a debate as to whether all staff should be included in the bargaining unit.

13) The Employer stated that, it had proposed that Acas should be requested to assist. The Employer stated that following receipt of the Union’s request on 12 June 2020 Company representatives took part in a video conference call with representatives of the Union when, among other things, the option of asking Acas to assist in conducting the negotiations was discussed. The Employer stated that on 15 June 2020 the Company wrote to the Union again specifically raising the option of asking Acas to assist.

14) The Employer stated that it currently employed 35 workers. The Employer stated that it did not agree with the Union’s number of workers in the bargaining unit as defined in the Union’s application. The Employer said that negotiations with the Union to date had not yet included defining the bargaining unit and it was unclear to the Company how the Union was defining ‘Senior Managers’.

15) As to whether it agreed with the number of workers in the bargaining unit as defined in the Unions’ application the Employer stated that it had seen no evidence apart from the Union’s own assertion in their application to suggest a membership level and the company did not operate checking off.

16) The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

5. The Membership Check

17) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit (including their full name and date of birth). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 17 August 2020 from the Case Manager to both parties. The information from the Union was received by the CAC on 17 August 2020 and the information from the Employer was received by the CAC on 19 August 2020. August 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 33 workers in the proposed bargaining unit. The list of members supplied by the Union contained 20 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 18, a membership level of 54.55%.

19) A report of the result of the membership check was circulated to the Panel and the parties on 19 August 2020 and the parties were invited to comment on the result.

6. The parties’ comments on the result of the membership check

20) The Employer, in an e-mail dated 21 August 2020, stated they had no grounds to doubt the accuracy of the figures in the report. The Employer stated that they wished for it to be noted that this was not an acceptance that this was the correct bargaining unit. The Employer stated that the Company’s negotiations with the Union to date had not yet included defining the bargaining unit and it was unclear to the Company how the Union were defining ‘Senior Managers’.

21) No comment on the result of the membership check was received from the Union.

7. Considerations

22) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

23) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

24) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit.

25) The membership check conducted by the Case Manager (described in paragraphs 17 and 18 above) showed that 54.55% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel notes that the Employer in their comments on the membership report (see paragraph 20 above) stated that they had no grounds to doubt the accuracy of the figures in the report. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

26) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. For the reasons given in the previous paragraph the level of union membership is 54.55%. The Union did not provide any additional evidence of support for recognition, such as a petition, but the Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No evidence to the contrary was provided in this case. On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

10. Decision

27) For the reasons given in paragraphs 23 to 26 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr. Stuart Robertson, Panel Chair

Mrs Sue Jordan

Mr. Gerry Veart

1 September 2020